MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	6

Docket: Ken-18-6

Argued: October	23,	2018

Decided: January	15,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v.

TODD	J.	PERKINS

HUMPHREY,	J.

[¶1]		 In	 this	appeal,	we	consider	whether	jury	instructions	given	in	an	

OUI	case	were	confusing	where	the	State	presented two	alternative	theories	of	

guilt—principal	liability	and	accomplice	liability.		We	affirm	the	judgment,	and,	

because	 these	alternative	 theories	are	not	commonly	pursued	 together	in	an	

OUI	prosecution,	we	also	take	this	opportunity	to	clarify	and	distinguish	them.

[¶2]		Todd	J.	Perkins	appeals	from	a	judgment	of	conviction	for	operating	

under	the	influence	with	a	refusal	to	submit	to	a	chemical	test	(Class	D),	29-A	

M.R.S.	 §	 2411(1-A)(C)(1)	 (2017),	 entered	 by	 the	 court	 (Kennebec	 County,	

Benson,	 J.)	 after	 a	 jury	 trial.	 	 Perkins	 contends	 that	 the	 court	 abused	 its	

discretion	 when	 it	 denied	 his	 motion	 for	 a	 new	 trial	 because	 the	 court’s	

instructions	on	a	driver’s	duty	to	submit	to	a	chemical	test	and	on	accomplice	
2

liability	confused	the	jury	and	did	not	provide	a	roadmap	for	the	jury	to	be	able	

to	return	a	not	guilty	verdict.1

I.		BACKGROUND

[¶3]		“Viewing	the	evidence	in	the	light	most	favorable	to	the	State,	the	

jury	 rationally	 could	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	

doubt.”		State v.	Hurd, 2010	ME	118,	¶	4,	8	A.3d	651.		Late	in	the	afternoon	of	

August 26,	 2016,	 Richard	 Tuttle	 picked	 up	 Perkins	 at	 his	 home	 in	 Windsor,	

Maine,	and	drove	the	pair	in	Perkins’s	truck	to	several	bars	in	Hallowell.2		The	

men	 visited	 three	 bars	 that	 evening	 and	 had	 a	 “few	 beers”	 at	 each	 stop.	

Sometime	 late	 in	 the	 night, a	 bartender	 refused	 Perkins	 and	 Tuttle	 further	

service	due	to	their	high level	of	intoxication.		The	manager	of	the	bar	asked	the	

men	to	leave	and	advised	Perkins	not	to	drive.		The	manager saw	the	men	exit	

the	bar,	walk	to	the	back	of	Perkins’s	truck,	and	consume	the	contents	of	two	

cans	they	retrieved	from	the back	of	the	vehicle.		Concerned	that	Perkins	was	

 1		Perkins	also	argues	that,	consistent	with	the	theory	of	accomplice	liability,	the	court	should	have	

instructed	the	jury	sua	sponte regarding	a	voluntary	intoxication	defense.		Because	Perkins	did	not	

request	a	voluntary	intoxication	instruction	or	object to	its	omission	at	trial,	he	did	not	preserve	that	

argument,	and	the	court’s	alleged	failure	to	provide	the	instruction	sua	sponte was	not	obvious	error.		

See State	v.	Gauthier,	2007	ME	156,	¶	26,	939	A.2d	77 (stating	that	in	an	obvious	error	review,	“we	

will	 not	grant	 relief	 unless	 the	 error	in	 the	instructions	is	 so	 highly	 prejudicial	and	 so	 taints	 the	

proceedings	as	to	virtually	deprive	the	defendant	of	a	fair	trial.”)	(quotation	marks	omitted).		We	do	

not	consider	this argument	further.

2		Perkins	had	a	conditional	license	that	prohibited	him	from	driving	after	consuming	any	amount	

of	alcohol.		
3

already	 “almost	 blackout	 drunk”	 and	 would	 attempt	 to	 drive,	 the	 manager

called	9-1-1.		He	gave	the	police	a	description	of	the	truck	and	the	license	plate	

number.	

[¶4]		In	the	early	morning	of	August	27,	Officer	Sheridan	encountered	the	

truck	 traveling	 north	 towards	 Augusta.	 	 He	 followed	 the	 vehicle	 for	

approximately	a	quarter	of	a	mile	before it	entered	Memorial	Circle,	a	rotary.		

At	the	rotary,	the	truck	was	straddling	the	dividing	line	with	its	right	blinker	on	

for	 the	Memorial	Drive	exit	when	it	suddenly	jerked	left	and	 travelled	all	 the	

way	around	the	circle	again.		The	truck	finally	exited,	veered	right,	and	jerked	

to	a	stop	with	squealing	tires.		Officer	Sheridan	came	to	a	stop	behind	the	truck.		

When	 he	 reached	 the	 driver’s	 side	 window—five	 to	 ten	 seconds	 after	

stopping—Perkins	 was	 seated	 behind	 the	 wheel.	 	 Officer	 Sheridan	 observed	

that	 Perkins’s	 speech	 was	 extremely	 slow	 and	 slurred,	 his	 movements	 were	

lethargic,	and	he	gave	conflicting	statements	to	the	officer.		

[¶5]	 	 Approximately	 five	 minutes	 after	 Officer	 Sheridan	 stopped	 the	

truck,	 Officer	 Adams	 arrived	 at	 the	 scene.	 Officer	 Adams	 approached	 the	

vehicle,	 observed	 Perkins	 in	 the	 driver’s	 seat	 and	 another	 person	 in	 the	

passenger’s	seat,3 and	detected	the	odor	of	intoxicating	liquor	coming	from	the	

 3 Neither	officer	asked	the	passenger	for	his	name	or	ever	interviewed	him	about	the	incident.	
4

vehicle.		Officer	Adams	asked	Perkins	how	much	he	had	to	drink	and	Perkins	

responded	that	he	wasn’t	driving	because	he	was	“unsafe	to	drive.”		At	Officer	

Adams’s	 request,	Perkins	exited	 the	 truck;	his	movements	were	 slow	and	he	

used	 both	 hands	 on	 the	 door	 to	 maintain	 his	 balance.	 	 Officer	 Adams	 then	

attempted	 to	 administer	 the	 horizontal	 gaze	 nystagmus	 test,	 but	 despite	

multiple	attempts,	Perkins	was	unable	to	complete	the	test.		

[¶6]	 	 Perkins	 was	 placed	 under	 arrest	 on	 suspicion	 of	 OUI	 and	

transported	to	the	Augusta	Police	Department.		Once	there,	Perkins	repeatedly	

declined	to	take	a	breath test	and	would	not	sign	the	refusal	paperwork.	

[¶7]		On	August 27,	2016,	Perkins	was	charged	with	one	count	of	criminal	

OUI	 with	 a	 refusal	 to	 submit	 to	 a	 chemical	 test	 (Class	 D).	 	 29-A	 M.R.S.	

§ 2411(1-A)(C)(1).	 He	 waived	 arraignment	 and	 entered	 a	 not	 guilty	 plea.		

Perkins’s	first	trial	in	June	2017 resulted	in	a	hung	jury	and	mistrial.		

[¶8]		The	court	held	a	second jury	trial	on	November	30	and	December	1,	

2017.	 The	 prosecution	 presented	 two	 alternative	 theories	 of	 the	 case:	

(1) Perkins	 operated	 a	 motor	 vehicle	 while	 under	 the	 influence	 (“principal	

liability”),	or	(2)	Perkins,	knowing	that	the	other	person	in	the	truck,	Tuttle,	was	

intoxicated,	 intentionally	 allowed	 Tuttle	 to	 drive	 Perkins’s	 motor	 vehicle	

(“accomplice	liability”).		
5

[¶9]		At	the	close	of	the	evidence	and	final	arguments,	the	court	reviewed	

the	proposed	jury	instructions	with	counsel	in	chambers.		Perkins	objected	only	

to	the	accomplice	liability	instruction,	asserting	that	it	would	confuse	the	jury,	

and	that	the	court	and	the	parties	would	not	be	able	to	“sort	out”	which	theory	

of	 liability—principal	 or	 accomplice—the	 jury	 based	 its	 verdict	 on	 when	

considering	the	refusal	instruction.		

[¶10]	 	 Relevant	 to	 this	 appeal,	 the	 court	 gave	 the	 following	 jury	

instructions	regarding	Maine’s	OUI	law,	accomplice	liability,	and	a	driver’s	duty	

to	submit	to	a	chemical	test:

[OUI—Principal	Liability]

A	 person	 under	 our	 law	 is	 guilty	 of	 operating	 under	 the	

influence	if	he	operates	a	motor	vehicle	while	under	the	influence	

of	intoxicants.	

In	order	for	you	to	find	the	defendant	guilty,	the	State	must	

prove	beyond	a	reasonable	doubt;	one,	that	the	defendant	operated	

a	motor	vehicle;	and	two,	at	the	time	of	the	operation	the	defendant	

was	under	the	influence	of	intoxicants.

.	.	.	.	

[OUI—Accomplice	Liability]

.	.	.		A	person	may	also	be	found	guilty	of	operating	under	the	

influence	as	a	princi[pal] or	as	an	accomplice,	thus	you	may	return	

a	 verdict	 of	guilty	if	 you	 find	 that	 the	State	has	 proven	beyond	a	

reasonable	 doubt;	 one,	 that	 the	 defendant,	 Todd	 Perkins,	 was	

operating	 a	 motor	 vehicle,	 and at	 the	 time	 of	 operation	 he	 was	

under	the	influence	of	intoxicants	or	that;	two,	the	defendant,	Todd	
6

Perkins,	 knew	 that	 Richard	 Tuttle	 was	 under	 the	 influence	 of	

intoxicants,	 and	 with	 the	 intent	 Richard	 Tuttle	 operate	 Todd	

Perkins’[s] motor	vehicle,	Todd	Perkins	allowed	Richard	Tuttle	to	

operate	the	motor	vehicle,	and	Richard	Tuttle	operated	the	motor	

vehicle	while	under	the	influence	of	intoxicants.	

So,	 there	were	 two	 separate	 theories	under	which	 you	can	

consider	 whether	 the	 defendant,	 Mr.	 Perkins,	 committed	 the	

offense	of	operating	under	the	influence.

[Refusal	Instruction]

The	 Law	 in	 Maine	 provides	 that	 a	 person	 has	 the	 duty	 to	

submit	to	chemical	testing	to	determine	the	person’s	blood	alcohol	

level	if	 there	is	probable	cause	 that	 the	person	operated	a	motor	

vehicle	while	 under	 the	influence	 of	intoxicants.		While	a	 person	

has	a	duty	to	submit	to	chemical	testing,	the	person	is	not	required	

to	sign	the	implied	consent	form.		The	chemical	test	to	which	the	

person	has	a	duty	to	submit	is	a	breath	test	unless	the	investigating	

police	officer	determines	that	a	breath	test	is	not	reasonable.		If	the	

officer	determines	a	breath	test	is	not	reasonable,	another	chemical	

test,	such	as	a	blood	test,	shall	be	administered	instead.		

In	 this	 case,	 the	 State,	 and	 the	 complaint	 allege	 that	 the	

defendant	failed	to	submit	to	a	chemical	test.		The	State	must	prove	

beyond	a	reasonable	doubt	that	the	defendant	failed	to	submit	to	a	

test.		 If	you	 find	as	a	 fact	 that	 the	defendant	 failed	 to	submit	 to	a	

test,	 that	 failure	 is	 evidence	 that	 may	 be	 considered	 by	 you	 in	

determining	 whether	 the	 defendant	 was	 under	 the	 influence	 of	

intoxicants,	and	 you	may	give	 that	evidence	of	 failure	 the	weight	

you	believe	it	deserves.	

[¶11]		The	jury	found	Perkins	guilty.		Neither	party	requested	a	special	

verdict	 and	 the	 jury	 did	 not	 disclose	 whether	 it	 found	 Perkins	 guilty	 as	 the	

principal	or	as	an	accomplice.		
7

[¶12]		On	December	15,	2017,	Perkins	moved	for	a	new	trial.		M.R.	Crim.	

P.	 33.	 	 He	 argued	 that	 the	 court	 erred	 by	 failing	 to	 sufficiently	 clarify	 “the	

interplay	of	the	accomplice	liability	instruction	[and]	the	refusal	language.”		The	

court	denied	his	motion and sentenced	Perkins	to	ninety days	in	the	Kennebec	

County	 Jail,	suspended	his	driver’s	license	 for	150	days,	and	assessed	a	$650	

fine.		Perkins	filed	a	timely	notice	of	appeal.		See 15	M.R.S.	§	2115	(2017);	M.	R.	

App.	P.	2B(b).		

II.		DISCUSSION

[¶13]		On	appeal,	Perkins	argues	that	the	court’s	denial	of	his	motion	for	

a	new	trial	was	an	abuse	of	discretion	because	the	court	failed	to	clarify	in	its	

instructions	that,	in	the	context	of	an	OUI	charge under	the	accomplice	liability	

theory,	a	defendant’s	refusal	to	submit	to	a	chemical	test	has	no	bearing	on	a	

determination	of	the	defendant’s	guilt.		He	also	argues	that	he	was	deprived	of	

a	 fair	 trial	 because	 the	 court’s	 instructions	 failed	 to	 provide	 the	 jury	 with	 a	

roadmap	to	a	not	guilty	verdict.		

[¶14]		We	review	the	court’s	denial	of	a	motion	for	a	new	trial	for	abuse	

of	discretion.		See State	v	McNaughton,	2017 ME	173,	¶ 45,	168 A.3d	807.		In	

doing	 so,	we	 consider	 the	jury	instructions	 as	 a	whole	 and	 review	 “the	 total	

effect	 created	 by	 all	 the	 instructions	 and	 the	 potential	 for	 juror	
8

misunderstanding.”	 	 State	 v.	 Daniels, 663	 A.2d	 33,	 36	 (Me.	 1995) (quotation	

marks	 omitted); see	 also State	 v.	 Garcia,	 2014	 ME	 150,	 ¶	 15,	 106	 A.3d	 1137

(quotation	 marks	 omitted).	 A	 conviction	 must	 be	 vacated	 if	 “the	 erroneous	

instruction[s]	resulted	in	prejudice.”		State	v.	Anderson,	2016	ME	183,	¶	18,	152	

A.3d	623;	see	also State	v.	Gauthier,	2007	ME	156,	¶	14,	939	A.2d	77.	

[¶15]	 In	Maine,	a	defendant	may	be	found	guilty	of	OUI	as	a	principal—

the	operator—or	as	an	accomplice.		See	State	v.	Stratton,	591	A.2d	246,	247	(Me.	

1991);	Hurd, 2010	ME	118,	¶29,	8	A.3d	651.4		These	distinct	theories	differ	most	

notably	 in	 that	 a	 defendant	 need	 not	 be	 intoxicated	 or	 be	 the	 operator	 of	 a	

vehicle	 to	 be	 found	 guilty	 of	 OUI	 under	 the	 accomplice	 liability	 theory.	 	 See	

Stratton,	 591	 A.2d	 at	 247-48.	 	 A	 defendant	 need	 only	 intentionally	 allow	

another	 to	 operate	 his	 vehicle	 knowing	 that	 the	 other	 person	 is	 under	 the	

influence	 of	intoxicants.		 Because	 the	 point	cannot	be	 overstated,	we	 restate	

that	the	nondriver	defendant’s	state	of	intoxication	is	wholly	irrelevant	to	his	

guilt	under	an accomplice	liability	 theory;	he	can	be	sober	and	still	be	 found	

guilty.		

 4		Although	the	jury	must	return	a	unanimous	verdict,	the	members	of	the	jury	need	not	agree	as	

to	which	theory	of	guilt	applies	to	the	defendant.		State	v.	Hurd, 2010	ME	118,	¶	29,	8	A.3d	651. It	is	

well established	that	a court	is	“generally	barred	 from	inquiring	into	 the	jury’s	deliberations.”		Id.	

¶ 32.
9

[¶16]		In	this	case,	Perkins	was	charged	with	OUI	and	the	State	argued

both	 theories	 of	 liability—principal	 and	 accomplice—at	 trial.	 	 The	 court	

instructed	the	jury	with	regard	to	the	elements	of	each	theory.		The	court	also	

instructed	the	jury	on	Maine	law	regarding	the	duty	of	the	operator	of	a	motor	

vehicle	to	submit	to	chemical	testing	to	determine	his blood	alcohol	level	and	

informed	the	jury	that	it	was	free	to	use	the	operator’s	refusal	as	evidence	of	

his	intoxication	if	the	State	proved,	beyond	a	reasonable	doubt,	that	he failed	to	

submit	to	a	chemical	test.	 Perkins	argues	that	the	refusal	instruction	misled	the	

jury	because	the	court	did	not	specifically	limit	its	applicability	to	the	principal	

liability	 theory—an	 error,	 he	 argues,	 that	 resulted	 in	 an	 unfair	 trial.	 	 We	

disagree.

[¶17]		First,	the	court’s	refusal	instruction	was	clear:	“a	person	has	the	

duty	to	submit	to	chemical	testing	.	.	.	if	there	is	probable	cause	that	the	person	

operated	 a	motor	vehicle	while	 under	 the	influence.” (Emphasis	 added.) The	

instruction	unmistakably	(1)	applies to	 the	defendant	only as	the	operator	of	

the	vehicle,	not,	alternatively,	as	a	non-driver	accomplice,	(2)	provides that	the	

State	must	prove	 that	it	was	“the	defendant	 [who]	 failed	 to	submit	 to	a	 test,”	

and	(3)	permits the	jury,	if	persuaded	by	that	proof, to	consider	evidence	of	the	

refusal	in	deciding	“whether	the	defendant	was	under	the	influence.”		
10

[¶18]		The	uncontroverted	record	evidence	is	that	Perkins	was	the	only	

person	(1)	 charged	 with	 operating	 the	 truck	 while	 under	 the	 influence,	(2)	

specifically	 identified	 as	 “the	 defendant”	 in	 the	 instructions,	 (3)	 offered	 a	

chemical	 test,	 and	 (4)	who	 refused	 to	 take	a	 test; therefore,	he	was	the	 only	

person	to	whom	the	refusal	instruction	could	apply.		

[¶19]	 	 Second, because	 the	 refusal	 instruction	 unambiguously applied	

only	to	 the	 operator	 of	 the	 vehicle, it	 clearly	did	 not	 apply	to	 a nonoperator

accomplice.	 	 The	 accomplice	 liability	 instruction	 reflects	 this	 important	

distinction.	 	 It	 identifies two	 discrete actors—the	 operator	 and	 the	

accomplice—and	 two	 discrete inquiries:	 did	 the	 principal	 operate	 a	 motor	

vehicle	while	under	the	influence	of	intoxicants,	and	did	the	person	charged	as	

an	accomplice	intentionally	allow	the	principal	to	operate	the	vehicle	knowing	

that	the	principal	was	under	the	influence	of	intoxicants.		It	is	clear	from	these	

siloed	inquiries	 that	 the	 accomplice’s	 state	 of	impairment is	not relevant,	 or	

something	 that	 the	 State	 is	 required	 to	 prove	 under	 an	 accomplice	 liability	

theory,	and	that	the	instruction	does	not	provide	a	pathway	to	Perkins’s	guilt

of	OUI	as	an	accomplice	on	the	basis	of	his	refusal.		See State v. Ashley, 666 A.2d

103, 107 (Me. 1995) (stating	 that	it	is	well	established	 that	jury	instructions	

need	not	be	perfect,	and	the	trial	court	has	“wide discretion in formulating its
11

instructions to the jury so long as it accurately and coherently reflects the

applicable law”).		

[¶20]		Because	the	jury	instructions	are clear	that	the	refusal	instruction	

is	inapplicable	to	the	charge	of	accomplice	liability	in	an	OUI	case,	and	because	

we	can	identify	no	prejudice	to	Perkins	that	resulted	in	an	unfair	trial,	the	court	

did	not	abuse	its	discretion	by	denying	the	defendant’s	motion	for	a	new	trial.		

The	entry	is:

Judgment	affirmed.

Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant Todd 

J. Perkins

Maeghan Maloney, District Attorney, Christy Stilphen, Stud. Atty., and Tyler J. 

LeClair, Asst. Dist. Atty. (orally), Prosecutorial District IV, Kennebec, for appellee 

State of Maine

Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2016-2176

FOR	CLERK	REFERENCE	ONLY